SCOTUS Watch: What the 303 Creative Case is Really About

SCOTUS Watch: What the 303 Creative Case is Really About

SCOTUS Watch: What the 303 Creative Case is Really About

There’s a court case being argued before the Supreme Court which once again pits free speech against the incorrigible gay lobby. How SCOTUS rules may provide welcome relief to Christians who wish to practice their faith in the public square.

SCOTUS blog describes the issue in the case of 303 Creative LLC v. Elenis in a single, simple sentence:

“Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

The backstory is this: Lorie Smith, a graphic artist and website designer from Colorado, owns 303 Creative LLC, a design studio. Like other entrepreneurs, Smith wants to expand her business, and wants to include weddings in her list of services.

The problem here is that Lorie is a traditional Christian, and she doesn’t want to promote gay weddings. She says she is happy to serve gay customers, but doesn’t want to endorse same-sex marriages, which she believes are anti-Biblical.

The state of Colorado, however, has ruled that the speech and religious beliefs of Christians don’t matter. Under the state’s public accommodations law, businesses must provide all customers with all services they provide, with no exceptions.

Colorado baker Jack Phillips ran afoul of the law in 2012, when he refused to bake a cake to celebrate the wedding of Charlie Craig and Dave Mullins. They took him to court, and he lost, although he did win a partial victory in 2018 after SCOTUS ruled that the Colorado Civil Rights Commission overstepped its legal limits.


Credit: Jake Eytan/flickr/CC BY-SA 2.0.

But now Phillips is back in court again after he refused to make a cake celebrating a gender transition.


Seeking Final Justice From SCOTUS

Lorie Smith saw what happened to Jack Phillips in their shared state of Colorado, so in 2021 she challenged the state’s Civil Rights Commission on free speech grounds in order to protect her business and livelihood. However, in July of that year, the U.S. Court of Appeals for the Tenth Circuit ruled against her. Colorado ruled against her, ordering her to create websites that celebrate gay marriage. Forget her freedom of speech and religion, they said.

So Lorie Smith appealed to the Supreme Court of the United States in September, 2021. SCOTUS granted her petition for review. Oral arguments began on Monday. Like Jack Phillips, Lori Smith is being represented by the Alliance for Defending Freedom, with Kristen Waggoner as counsel.


The Argument is Raaaacist …

Of course, it’s racist. Because everything is racist these days.

Brian Fletcher, who is representing the government on behalf of Colorado, argued that if SCOTUS decided on behalf of Smith, doors of racism would fling wide open. He cited the case of Runyon v. McCrary in which a private school discriminated against black children in admissions. Fletcher said:

“It said the reason we want to do this is because segregation is important to our beliefs and that’s what we want to teach. And this court said, you are free to teach segregation in your school, but you can’t act on that belief by excluding children of particular races.” 

Oh, but Lorie Smith and her fellow Christians aren’t really racist, Fletcher continued. We’re not saying that, but …

“I do not mean to equate those who have different views about marriage to racists, but the reason why I rely on those hypotheticals is because this court’s First Amendment jurisprudence does not distinguish between views we find odious and those we respect. The same principles apply in both cases, and if the principles lead to unacceptable places when we consider them in light of odious views, then I think we have to reject those principles even in a case where we sympathize with and respect the views.” 

David Cole, national director of the ACLU, also threw down the race card in an opinion piece for the New York Times:
“Otherwise, interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contain some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group. The First Amendment protects the right to have and express bigoted views, but it doesn’t give businesses a license to discriminate.”
This is the same David Cole, mind you, who praised the ACLU for defending the Nazi March in Skokie, IL, in 1977. The same Cole who wrote a June, 2022, article for The Nation entitled “The ACLU Never Stopped Defending Free Speech.” Cole wrote:
“Since Charlottesville and the guidelines, we have defended the First Amendment rights of countless individuals and groups whose views we do not share. They include: Trump lawyer Michael Cohen, the NRA, anti-Semitic protesters outside a synagogue, racist and homophobic college students, and the Koch-funded Americans for Prosperity. Most recently, we called on Georgetown Law not to fire conservative scholar Ilya Shapiro for his “lesser Black woman” tweet about Biden’s promise to name a Black woman to the Supreme Court; criticized the FBI’s tactics in investigating the conservative group Project Veritas; and hailed Elon Musk’s decision to re-platform Donald Trump.”
Yes, the ACLU will defend everyone’s free speech — unless that person is a practicing Christian. So what’s Cole’s solution for Lorie Smith?
“First, no artist has to open a business to the public in the first place.”

In other words, learn to code. Forget your dreams and find another job.


What This is Really About

The issue here is not that LGBT or transgender customers are being denied a service from Lori Smith. If Smith doesn’t want to do a website for a gay marriage, fine. Go somewhere else. These customers no longer have to open a drawer, pull out the Yellow Pages, and find another designer in town who will create a website. Besides, who does that anymore? No one — not when there’s a whole internet available.

Rather, these people are out to punish Christians. In their world, Christians and other people of traditional faith should keep their beliefs behind the doors of their houses of worship. They want religious people driven from the public square.

And whom do these activists target? They aim at the small fry, the single-proprietor who doesn’t have deep pockets. The gay lobby is rather like a pack of wolves who find the small moose calf who has been separated from the herd and swoop in for the kill.

In short, these gay lobby activists are bullies, not the justice warriors they think themselves to be.

But things are looking up for Lorie Smith. With the additions of Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett — who join originalist stalwarts like Justice Samuel Alito and Clarence Thomas — she may get the relief to which she is entitled under the First Amendment.


Featured image: NCinDC/flickr/cropped/CC BY-ND 2.0.

Written by

Kim is a pint-sized patriot who packs some big contradictions. She is a Baby Boomer who never became a hippie, an active Republican who first registered as a Democrat (okay, it was to help a sorority sister's father in his run for sheriff), and a devout Lutheran who practices yoga. Growing up in small-town Indiana, now living in the Kansas City metro, Kim is a conservative Midwestern gal whose heart is also in the Seattle area, where her eldest daughter, son-in-law, and grandson live. Kim is a working speech pathologist who left school system employment behind to subcontract to an agency, and has never looked back. She describes her conservatism as falling in the mold of Russell Kirk's Ten Conservative Principles. Don't know what they are? Google them!

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  • Big Crow says:

    And yet the medical community goes unchallenged in it’s refusal to provide certain levels of care to unvaccinated patients, little things like organ transplants…..

  • This sort of contretemps will continue until the “public accommodations” BS is struck from the civil rights laws. It was always anti-Constitutional; without the freedom to choose one’s own associates, there is no freedom worthy of the name. A business owner has the same right to do so as any other person. But under current law, the courts have to decide what constitutes protected “speech” and enforceable “nondiscrimination” policy. It’s worse than the days when the Supreme Court had to watch movies to rule on whether they could be banned as obscene.

    I see a little sign returning to establishments everywhere: “We Reserve The Right To Refuse To Serve Anyone.” Watch for it!

  • Cameron says:

    I have no moral issue with businesses saying that they won’t do business with certain groups. That gives members of those groups great opportunities.

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